Introduction

This article seeks to answer the question of whether International Law sufficiently protects the right of foundlings to a nationality. In particular, it focuses on the issue of whether International Law affords foundlings the right to be considered nationals of the State in which they are found, and whether States have a binding obligation to confer their nationality on foundlings found in their territory.

As used in this article, a foundling is a child of unknown parentage found abandoned on the territory of a State.[2] It must be an infant at the time it was found abandoned. The Black’s Law Dictionary defines a foundling as “a deserted or abandoned infant; a child without a parent or guardian, its relatives being unknown.“[3] The Oxford English Dictionary also uses the term infant in defining foundling, thus “an infant that has been abandoned by its parents and is discovered and cared for by others.”[4] The word infant, on the other hand, is defined as “a very young child or baby.”[5]

This article will argue that there are gaps in International Law that result in inadequate protection and implementation of the right of foundlings to a nationality. In particular, this article will show that the obligation of a State to confer its nationality upon a foundling in its territory exists only as a matter of treaty obligation in International Law.

This article is structured as follows: The first section will talk about nationality and discuss the different principles of acquiring a nationality and the corresponding obligations of States. The second section will talk about statelessness and the measures taken States to reduce it. The third section will examine the rules that confer nationality on foundlings in international conventions and treaties, and determine the scope of their coverage and their binding nature. The fourth section will determine if the existing practices or rules that confer nationality on foundlings have attained the status of customary international law and, therefore, binding upon all States.

For purposes of this article, the terms nationality and citizenship shall be used interchangeably and without distinction. Most States consider citizenship, which is the term that is commonly used in municipal or national law, as synonymous with nationality, which is the term used in International Law. The United States (U.S.) and Russia are two of the notable exceptions. Under U.S. law, not all U.S. nationals are U.S. citizens. For example, the inhabitants of American Samoa and Swain Island are considered nationals for International Law purposes but are not considered citizens for purposes of the U.S. Constitution and its laws.[6] Under Russian law, the term nationality is associated with the ethnicity of a person, while the term citizenship refers to the legal bond between an individual and the State.[7]

Nationality

Nationality is generally understood as the legal bond that connects a person to a particular State. It constitutes his membership in the particular State. It makes him a national (or a citizen in the point of view of municipal law) of that State.

Nationality creates reciprocal obligations between the citizen and the State. It imposes upon the citizen the duty to render allegiance to the State and subjects him to the obligations created by the laws of that State. Thus, it is the basis of the State’s exercise of jurisdiction over the person. On the part of the State, nationality imposes the responsibility to protect the citizen. It also gives the State the right to accord diplomatic protection to its nationals and to make claims on their behalf.

Article 15(1) of the Universal Declaration of Human Rights[8] provides that everyone has a right to nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

International Law, however, recognizes the right of each State to determine who its citizens are, and to establish its own standards for conferring nationality albeit only for domestic law purposes. In the Nottebohm case,[9] the International Court of Justice (ICJ) ruled that Liechtenstein is the sole judge of whether Nottebohm is a citizen of the State but such is for domestic law purposes only as other nations are not obliged to recognize Nottebohm’s Liechtenstein citizenship especially absent a genuine link between Nottebohm and that State.

The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws[10] (hereafter, the “1930 Hague Convention“) provides the following rules in determining a person’s nationality:

“It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.” (Article 1)

“Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.” (Article 2)

A State may confer its nationality exclusively upon persons born within its territory or jurisdiction by the application of the principle of jus soli (by place of birth)[11] regardless of the nationality of their parents. A State may also confer nationality only to persons whose parents are nationals of the State by the application of the principle of jus sanguinis (by right of blood) regardless of whether they are born within or outside its territory. A State may also apply both principles of jus soli and jus sanguinis. A State may also confer nationality upon persons through naturalization, which does not require the naturalized citizen to be born within the territory of the State or to be born of parents who are nationals of the State. A State may also consider marriage and adoption as methods of acquiring a nationality.

The concurrent application of the principles of jus soli and jus sanguinis may result in an individual having the nationalities of two States, i.e., dual citizenship. If a child whose parents’ State of nationality applies the principle of jus sanguinis is born in the territory of another State that applies the principle of jus soli, the child would be possessed of dual citizenship. The child acquires both the nationality of his parents’ State of nationality and the nationality of the State where he was born.

Article 3 of the 1930 Hague Convention recognizes that a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses. However, Article 5 of the said Convention also adds that:

“Within a third State, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third State shall, of the nationalities which any such person possesses, recognise exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.”

Statelessness

While the concurrent application of the principles of jus soli and jus sanguinis may result in a person having dual or multiple nationalities, their conflicting application, on the other hand, may result in an anomaly whereby an individual is not possessed of any nationality.

If a child whose parents’ State of nationality exclusively applies the principle of jus soli is born in the territory of another State that exclusively applies the principle of jus sanguinis, the child would not be considered a citizen of either State; hence, a stateless person.

Article 1 of the 1954 Convention Relating to the Status of Stateless Persons[12] defines a stateless person as a person who is not considered as a national by any State under the operation of its laws. Since many rights and privileges afforded by States may be exercised only by their nationals, a stateless person, therefore, is at a big disadvantage.

While nationality is the basis of the reciprocal obligation of allegiance on the part of the citizen and obligation of protection on the part of the State, a stateless person is not without obligations to the State in which he finds himself. Article 2 of the 1954 Convention Relating to the Status of Stateless Persons[13] provides that:

“Every stateless person has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”

Reciprocally, although not a national of the State in which he finds himself, a stateless person is not entirely without right and protection. Under the same Convention,[14] a stateless person shall be accorded the same treatment at least as favorable as that accorded to the nationals of the State with respect to freedom to practice their religion and freedom as regards the religious education of their children.[15] A stateless person shall also be accorded the same treatment granted to a national of the country of his habitual residence with respect to rights to artistic rights and industrial property, free access to courts, rationing, elementary education, and public relief and assistance.[16] A stateless person shall also be accorded the same treatment which shall be as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances with respect to rights to movable and immovable property, right of association, wage-earning employment, liberal professions, housing, and freedom of movement.[17]

Aiming to reduce statelessness by international agreement, the 1961 Convention on the Reduction of Statelessness[18] has adopted the following measures to prevent statelessness:

“A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless.” (Article 1)

“A Contracting State shall grant its nationality to a person, not born in the territory of a Contracting State, who would otherwise be stateless, if the nationality of one of his parents at the time of the person’s birth was that of that State.” (Article 4)

The Right to Nationality in International Law

Since nationality is the legal bond between a State and an individual, such bond is not possible without the consent of the State. Such consent may be manifested by a State in several ways:

Expressly, through a municipal law that confers nationality upon a foundling;

Expressly, through an international convention or treaty where a State assumes the obligation to confer its nationality upon foundlings in its territory; or

Impliedly, through a rule of customary international law that imposes an obligation on the State to confer its nationality upon foundlings in its territory.

This article focuses only on conferment of nationality on foundlings either by way of an obligation assumed under an international convention or imposed by an international custom or norm. However, the examination of municipal laws that confer nationality upon foundlings is still relevant as evidence of a general practice accepted as law, i.e., an international custom.[19]

Hence, under International Law, the right of a foundling to nationality can be based on international conventions or on international customs, both of which are considered to be sources of International Law pursuant to Article 38, paragraph 1 of the Statute of the International Court of Justice (“ICJ Statute”).[20]

The Right to Nationality in Resolutions of the United Nations General Assembly

The Universal Declaration of Human Rights,[21] which was adopted by the General Assembly of the United Nations on 10 December 1948, has codified “nationality” as a human right.[22] Article 15 of the Declaration reads:

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

As to the binding nature of resolutions of the U.N. General Assembly, Professor Ian Brownlie expresses the view that these resolutions, in general, are not binding on member States. He adds, however, that when the resolutions are concerned with general norms of international law, then acceptance by a majority vote constitutes evidence of the opinions of governments in the widest forum for the expression of such opinions.[23]

As a mere resolution of the General Assembly, the Universal Declaration of Human Rights is not per se legally binding. There is, however, a view that since 1948 the Declaration has become binding as a new rule of Customary International Law.[24] Paragraph 2 of the Proclamation of Teheran,[25] which was adopted by the International Conference on Human Rights held in Iran in 1968 declares: “The Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community.”

In 1959, the Declaration on the Rights of the Child[26] was proclaimed by the U.N. General Assembly through its Resolution 1386(XIV) of 20 November 1959. It contains a more emphatic provision on the right to nationality as applied to children as it makes it an entitlement of a child from birth. Principle 3 of the Declaration reads:

“The child shall be entitled from his birth to a name and a nationality.”

Another resolution of the U.N. General Assembly, the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children,[27] adopted on 3 December 1986, and published on 6 February 1987, also affirms the right to nationality as applied to children. Article 8 of the said Declaration reads:

“The child shall at all times have a name, a nationality and a legal representative. The child should not, as a result of foster placement, adoption or any alternative regime, be deprived of his or her name, nationality or legal representative unless the child thereby acquires a new name, nationality or legal representative.”

The Right to Nationality in International Conventions

International conventions or treaties are agreements that establish rules that are expressly recognized by the parties to them.[28] The Vienna Convention on the Law of Treaties[29] defines a treaty as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.[30]

Since express consent is required for a State to be bound by the rules that international conventions or treaties establish, States that do not become a party to a particular convention or treaty cannot be bound by its terms. This principle was explained by the ICJ in the North Sea Continental Shelf cases[31] where it stated that:

“In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the régime of the convention is to be manifested-namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way. Indeed if it were a question not of obligation but of rights,—if, that is to say, a State which, though entitled to do so, had not ratified or acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing acceptance of the conventional régime, it would simply be told that, not having become a party to the convention it could not claim any rights under it until the professed willingness and acceptance had been manifested in the prescribed form.”[32]

The principle is also echoed in the Vienna Convention on the Law of Treaties. It states: “A treaty does not create either obligations or rights for a third State without its consent.“[33] It adds further: “An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.”[34]

Therefore, a rule conferring nationality upon foundlings, if established pursuant to an international convention or treaty, is only binding on States that are parties to the said convention or treaty. Consequently, foundlings found in States that are not parties to such an international convention may not compel said States to give them their nationalities.

Thus, the following international conventions that affirm the right of everyone to a nationality must be understood as binding only on State which are parties to them, either by ratification, accession, or any other means allowed by the particular convention in question.

The Council of Europe affirms the right of everyone to a nationality through the European Convention on Nationality,[35] which it adopted on 6 November 1997 at Strasbourg. It provides:

Article 4 – Principles

The rules on nationality of each State Party shall be based on the following principles:

everyone has the right to a nationality;

statelessness shall be avoided;

no one shall be arbitrarily deprived of his or her nationality;

The Arab States also recognize the right to a nationality. Article 29 of the Arab Charter on Human Rights,[36] which was adopted by the Council of the League of Arab States on 22 May 2004, states:

Everyone has the right to nationality. No one shall be arbitrarily or unlawfully deprived of his nationality.

States parties shall take such measures as they deem appropriate, in accordance with their domestic laws on nationality, to allow a child to acquire the mother’s nationality, having due regard, in all cases, to the best interests of the child.

No one shall be denied the right to acquire another nationality, having due regard for the domestic legal procedures in his country.

The Association of Southeast Asian Nations (ASEAN) also echoes a similar declaration which affirms the right to nationality. Article 18 of the ASEAN Human Rights Declaration,[37] which was adopted on 18 November 2012 at Phnom Penh, Cambodia, states:

“Every person has the right to a nationality as prescribed by law. No person shall be arbitrarily deprived of such nationality nor denied the right to change that nationality.”

The Latin American States also uphold the right to nationality of every person. The American Convention on Human Rights, “Pact of San Jose, Costa Rica,”[38] which was adopted by the Organization of American States (OAS) on 22 November 1969, states:

Article 20. Right to Nationality

Every person has the right to a nationality.

Every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality.

No one shall be arbitrarily deprived of his nationality or of the right to change it.

The 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms,[39] which was adopted on 26 May 1995 at Minsk, Belarus, also provides that:

Article 24

Everyone shall have the right to citizenship.

No one shall be arbitrarily deprived of his citizenship or of the right to change it.

In other international conventions, this right to a nationality is guaranteed in a clearer language, i.e., as the right to acquire a nationality, especially in the case of children.

Article 24(3) of the International Covenant on Civil and Political Rights,[40] which was adopted on 16 December 1966 in New York, affirms that: “Every child has the right to acquire a nationality.”

Article 7(1) of the Convention on the Rights of the Child,[41] which was adopted on 20 November 1989 in New York, reads:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.”

Article 7(2) of the same Convention[42] imposes the further obligation upon States Parties to “ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”

The African States also assert the right of every child to acquire a nationality. The African Charter on the Rights and Welfare of the Child,[43] which was adopted by the Organization of African Unity on 11 July 1990 at Addis Ababa, Ethiopia, states:

Article 6: Name and Nationality

Every child shall have the right from his birth to a name.

Every child shall be registered immediately after birth.

Every child has the right to acquire a nationality.

States Parties to the present Charter shall undertake to ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws.

The Scope and Meaning of the Right to Nationality

While there is no question about the binding nature of the provisions of international conventions protecting the right of everyone to a nationality and to acquire a nationality, the question, however, is the scope of the said provisions and the nature of the obligation they impose upon the states which are parties to them. Are the said general rights to a nationality and to acquire a nationality sufficient to impose a binding obligation upon a state party to confer its nationality upon a foundling in its territory?

In General Comments No. 17: Article 24 (Rights of the Child),[44] the Human Rights Committee has made the following observations:

“Special attention should also be paid, in the context of the protection to be granted to children, to the right of every child to acquire a nationality, as provided for in article 24, paragraph 3. While the purpose of this provision is to prevent a child from being afforded less protection by society and the State because he is stateless, it does not necessarily make it an obligation for States to give their nationality to every child born in their territory.”

In his Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights,[45] Marc Bossuyt made the following observations with respect to the adoption of the wording of Article 24, paragraph 3 of the ICCPR.

“During the ensuing debate, the word ‘acquire’ was inserted in draft Article 24(3), and the words ‘from his birth’ were deleted. Accordingly, the word ‘acquire’ would infer that naturalization was not to be considered as a right of the individual but was accorded by the State at its discretion.[46]

Hence, the general right of everyone to nationality and of every child to acquire a nationality does not impose an unqualified obligation on the part of a State party to give its nationality on every child born on its territory.

The same interpretation would apply to all the other international conventions that protect the right of everyone to nationality and the more specific right of a child to acquire a nationality, including the Convention on the Rights of the Child which was adopted after the ICCPR. In fact, Article 7(2) of the Convention on the Rights of the Child provides: “States parties shallensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”

Article 7(2) of the Convention on the Rights of the Child underscores the equal importance of a State’s “national law” and its “obligations under the relevant international instruments” in ensuring its implementation of the right of a child to acquire a nationality, in particular where the child would otherwise be stateless. This obligation is explained by the Human Rights Committee in paragraph 8 of General Comments No. 17,[47] which reads:

“States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born. In this connection, no discrimination with regard to the acquisition of nationality should be admissible under internal law as between legitimate children and children born out of wedlock or of stateless parents or based on the nationality status of one or both of the parents. The measures adopted to ensure that children have a nationality should always be referred to in reports by States parties.

International Conventions that Specifically Apply to Foundlings

While the international conventions cited above deal with the right to nationality as applied to anyone or any person, or to children in general, there are several international conventions that contain specific provisions that apply to foundlings and their right to a nationality.

The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws[48] provides:

“Article 14. A child whose parents are both unknown shall have the nationality of the country of birth. If the child’s parentage is established, its nationality shall be determined by the rules applicable in cases where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found.

Article 15. Where the nationality of a State is not acquired automatically by reason of birth on its territory, a child born on the territory of that State of parents having no nationality, or of unknown nationality, may obtain the nationality of the said State. The law of that State shall determine the conditions governing the acquisition of its nationality in such cases.”

The 1961 Convention on the Reduction of Statelessness,[49] on the other hand, contains the following provisions:

Article 1

A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted:

(a) at birth, by operation of law, or

(b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this article, no such application may be rejected.

A Contracting State which provides for the grant of its nationality in accordance with subparagraph (b) of this paragraph may also provide for the grant of its nationality by operation of law at such age and subject to such conditions as may be prescribed by the national law.

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State.

Article 12

In relation to a Contracting State which does not, in accordance with the provisions of paragraph 1 of article 1 or of article 4 of this Convention, grant its nationality at birth by operation of law, the provisions of paragraph 1 of article 1 or of article 4, as the case may be, shall apply to persons born before as well as to persons born after the entry into force of this Convention.

The provisions of paragraph 4 of article 1 of this Convention shall apply to persons born before as well as to persons born after its entry into force.

The provisions of article 2 of this Convention shall apply only to foundlings found in the territory of a Contracting State after the entry into force of the Convention for that State.

1 Each State Party shall provide in its internal law for its nationality to be acquired ex lege by the following persons:

children one of whose parents possesses, at the time of the birth of these children, the nationality of that State Party, subject to any exceptions which may be provided for by its internal law as regards children born abroad. With respect to children whose parenthood is established by recognition, court order or similar procedures, each State Party may provide that the child acquires its nationality following the procedure determined by its internal law;

foundlings found in its territory who would otherwise be stateless.

The Covenant on the Rights of the Child in Islam,[51] which was adopted by the 32nd Islamic Conference of Foreign Ministers in Sana’a, Republic of Yemen in June 2005, states:

Article Seven – Identity

A child shall, from birth, have right to a good name, to be registered with authorities concerned, to have his nationality determined and to know his/her parents, all his/her relatives and foster mother.

States Parties to the Covenant shall safeguard the elements of the child’s identity, including his/her name, nationality, and family relations in accordance with their domestic laws and shall make every effort to resolve the issue of statelessness for any child born on their territories or to any of their citizens outside their territory.

The child of unknown descent or who is legally assimilated to this status shall have the right to guardianship and care but without adoption. He shall have a right to a name, title and nationality.

The Right to Nationality in Customary International Law

The Charter of the United Nations[52] acknowledges the existence of customary international law through Article 38(1)(b) of the ICJ Statute, which is incorporated into the Charter by Article 92 thereof. It states:

“The Court, whose function is to decide in accordance with International Law such disputes as are submitted to it, shall apply… international custom, as evidence of a general practice accepted as law.”[53]

Being a general practice accepted as law, a rule of customary international Law requires the presence of a State practice (usus) and the belief that such practice is obligatory as a matter of law or juridical necessity (opinio juris sive necesitatis). Opinio juris was described by Professor Brownlie as a “sense of legal obligation, as opposed to motives of courtesy, fairness, or morality.”

We will now turn to examine if there is evidence of practice that States adhere to, out of a sense of legal obligation (opinio juris), that is sufficient to maintain that the obligation of a State to give its nationality upon a foundling born or found on its territory has crystallized into a rule of customary international law.

State practice in the form of having municipal laws granting nationality on foundlings in their territories has been found in the following States:

United States of America – Section 301(f) of its Immigration and Nationality Act,[54] also known as the Foundling Statute, provides:

SEC. 301. The following shall be nationals and citizens of the United States at birth:

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

Section 3, Par. 4. (1) For the purposes of paragraph 3(1) (a), every person who, before apparently attaining the age of seven years, was found as a deserted child in Canada shall be deemed to have been born in Canada, unless the contrary is proved within seven years from the date the person was found.

Article 7. A child who was born or found on the territory of the Republic of Croatia shall acquire Croatian citizenship if both of his or her parents are unknown or are persons whose citizenship is unknown or are stateless persons. The child shall lose Croatian citizenship if by time he or she is fourteen it shall be determined that both of his or her parents are foreign citizens.

Section 12. Foundlings and children of parents with unknown citizenship

A foundling who is found in Finland is considered to be a Finnish citizen as long as he or she has not been established as a citizen of a foreign State. If the child has been established as a citizen of a foreign State only after he or she has reached the age of five, the child retains Finnish citizenship, however.

Every person first found in Ceylon as a newly born deserted infant of unknown and unascertainable parentage shall, until the contrary is proved, be deemed to have the status of a citizen of Ceylon by descent.

Article 7. The following are of Algerian nationality by birth in Algeria:

(1) the child born in Algeria of unknown parents;

However, the child born in Algeria of unknown parents shall not be considered to have ever been Algerian if, before he comes of age, it is established that he is also of foreign descent and if he possesses the nationality of his foreign parent in accordance with the law of that country.

Any foundling found in Algeria is considered to be born in Algeria until the contrary has been proved.

Every person first found in Belize as a newly born deserted infant of unknown and unascertainable parentage shall, until the contrary is proved, be deemed to have the status of a citizen of Belize by descent.

The following post-Communist States in Europe also grant exceptional jus soli citizenship for children of unknown parents, found in the territory, particularly: Albania, Bosnia H., Czech Republic, Estonia, FRY/Serbia, Latvia, Lithuania, Macedonia, Moldova, Poland, Romania, Slovakia, and Slovenia.[77]

The above shows that there is a big corpus of domestic statutes granting citizenship on foundlings. However, whether it satisfies the state practice requirement of customary international law is an entirely different question.

The State practice, to establish a rule of customary international law, must be extensive, virtually uniform, and show a general recognition that a rule of law or legal obligation is involved. As stated by the International Court of Justice in the North Sea Continental Shelf cases:

“Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.”[78]

However, perfect uniformity in the application of the practice is not really necessary. In the Case Concerning Military and Paramilitary Activities in and against Nicaragua[79] when it examined the customary nature of the principles of non-use of force and non-intervention, the ICJ stated that:

“It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other’s internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.”[80]

The ICJ also emphasized the necessity of opinio juris in several decisions. In the North Sea Continental Shelf cases, it observed:

“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitua1 character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.”[81]

While the State practice of conferring nationality on foundlings is sufficiently dense and extensive, it does not appear to be virtually uniform.

A number of States give their citizenship on foundlings found in their territory without requiring that the foundling must have been born in their territory. Some States, on the other hand, require that a foundling be born in their territory in strict application of the principle of jus soli. But some States implement a presumption that foundlings are deemed to have been born in their territory unless the contrary is proved.

Other States implementing such presumption impose a period within which such presumption can be rebutted, and that after such period and there is no evidence against it, then the presumption becomes conclusive. An example of this is Finland, where a foundling retains Finnish citizenship if established as a citizen of another State only after he or she has reached the age of five.[82] Another example is Canada that considers a deserted child to have been born in Canada, unless the contrary is proved within seven years from the date the person was found.[83]

Some States also implement an age requirement on foundlings as a condition for giving its citizenship. For example, the United States requires that foundlings were under the age of five years at the time they were found.[84] Canada requires that the foundling be found before apparently reaching the age of seven years.[85] Austria requires that a foundling be found under the age of six months.[86] The United Kingdom, on the other hand, requires that the foundling was a new-born infant at the time it was found.[87] This reflects the understanding of some States that a foundling must be an infant or a very young child.

Therefore, the practice of States of giving nationality to foundlings found in their territory is not sufficiently uniform and consistent enough to constitute a rule of customary international law. There is also no clear evidence of opinio juris that States feel a sense of legal obligation to confer their nationality on foundlings found in their territory.

The Right to Nationality as a Customary Rule of International Law Derived from Treaties

Some treaties known as law-making treaties (“traité-loi“) may also establish norms which, when coupled with opinio juris, result to rules of customary international law that become binding not only on the parties to the treaty, but also on non-parties. Article 38 of the Vienna Convention provides: “Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.”

In the ILA Report (London Principles),[88] the International Law Association summarized the case law on the role of treaties in the formation of customary international law:

Multilateral treaties can provide the impulse or model for the formation of new customary rules through State practice.[90]

Multilateral treaties can assist in the “crystallization” of emerging rules of customary international law.[91]

A multilateral treaty may give rise to new customary rules (or to assist in their creation) “of its own impact” if it is widely adopted by States and it is the clear intention of the parties to create new customary law.[92]

Treaties can, therefore, play an important role in the crystallization of emerging norms as binding international customs or at least to affirm their existence. In the North Sea Continental Shelf cases, the ICJ also recognized the norm-creating nature of treaties, as one of the recognized methods of establishing international customs, holding that:

“There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed.”[93]

The ICJ, however, also declared that in order to become an international custom, the provision of a treaty in question must be:

“a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention.”[94]

The relevant treaty provisions that specifically give foundlings the right to the nationality of the State where they are found state provide the following:

A child whose parents are both unknown shall have the nationality of the country of birth. (Art. 14, 1930 Hague Convention)[95];

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found. (Art. 14, 1930 Hague Convention)[96];

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State. (Art. 2, 1961Convention on the Reduction of Statelessness)[97];

Each State Party shall provide in its internal law for its nationality to be acquired ex lege by foundlings found in its territory who would otherwise be stateless. ( 6, European Convention on Nationality)[98]

For the said treaty provisions to be binding on States, which are not parties to said conventions as norms of customary international law, said provisions must fulfill the said standards set by the ICJ.

The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws entered into force on 1 July 1937 by virtue of the ratification or accessions of ten States.[99] As of this writing, only twenty-two States are parties to the Convention, namely Australia, Belgium, Brazil, Burma (Myanmar), China, Cyprus, Fiji, Great Britain, India, Kiribati, Lesotho, Liberia, Malta, Mauritius, Monaco, Netherlands, Norway, Pakistan, Poland, Swaziland, Sweden, and Zimbabwe.[100] Canada previously ratified the Convention in 1934 but subsequently denounced it 15 May 1996.[101]

The 1961Convention on the Reduction of Statelessness entered into force on 13 December 1975 and has sixty-four States parties as of this writing.[102] However, while it has more parties, its provision on foundlings (Article 2) cannot be said to reflect existing rules of customary law. Article 12(3) of the Convention states that the provisions of Article 2 shall apply only to foundlings found in the territory of a Contracting State after the entry into force of the Convention for that State. That being the case, the provision on foundlings contained in Article 2 of the Convention neither provides evidence of existing customary law nor assists in the crystallization of rules of customary international law. The said provision creates a purely conventional or treaty obligation that is referable only to the Convention.

Moreover, not having been widely adopted by States, the said provision cannot give rise to a new rule (lex ferenda) of customary international law or assist in its creation “of its own impact.”

The same things can be said of the provision on the nationality of foundlings in Article 6 of the European Convention on Nationality, which entered into force on 1 March 2000. While the Convention is also open to non-members of the Council of Europe, the Convention, as of this writing, has been signed by twenty-nine States, but has been ratified by only twenty of those States.[103] From the very wordings of Article 6, the obligation of a State Party to give its nationality to foundlings found in its territory who would otherwise be stateless shall be provided in its internal law. Evidently, it is an obligation that a State assumes within the context of the Convention, and not arising from a belief that it is rendered obligatory by the existence of a rule of customary international law requiring it.

Conclusion

While the right to nationality is declared as a fundamental human right by the Universal Declaration of Human Rights and some international conventions, its specific application on foundlings is still a matter of State prerogative and discretion. A State has the exclusive prerogative to determine who its citizens are, which may be limited only by international obligations that the State itself has assumed in International Law.

Some States already give their nationality to foundlings found in their territory ex lege. However, there is no indication that such practice is done out of a sense of legal obligation, or in recognition of what States believe to be a rule of customary international law.

The 1961 Convention on the Reduction of Statelessness has implemented provisions to secure the right of foundlings to a nationality, and impose an obligation on States to ensure its observance by giving their nationality on foundlings found on their territory. However, being a mere treaty or conventional obligation, the same is binding only upon States which are parties to the Convention. Furthermore, not having been generally accepted by States, it cannot be lightly assumed that its provisions on foundlings have crystallized into the establishment of an obligation that exists outside of the Convention as a matter of general practice accepted as law.

Absent a national law or an international convention where a State has agreed to assume an obligation to confer its nationality on a foundling found in its territory, the right of a foundling to nationality cannot be enforced by an action against the State. It is not a right that enforces itself by its own inherent value.

Thus, the right of foundlings to a nationality will just be an empty rhetoric unless States accord it due respect and take measures, internally and internationally, to implement the right. Foundlings in States that have no national laws, and which are not parties to international conventions, that give foundlings their nationality may, therefore, find themselves stateless, and International Law affords no remedy.

Endnotes:

[1] Dean, University of St. La Salle College of Law; Author: Public International Law Bar Reviewer; MCLE Lecturer & Bar Reviewer on Public International Law

“While modern international law uses the term ‘nationality’ to refer to the legal bond between an individual and a sovereign state, Russian domestic law uses the term ‘citizenship’ (grazdanstvo – гражданство). According to Russian legislation there is striking difference between citizenship (grazdanstvo – гражданство) and nationality (national’nost’ – национальность). In consequence, in the Russian context the term citizenship cannot be used as a synonym for nationality.

“The Constitution of the Russian Federation distinguishes between these two legal definitions. Thus, under Article 6 of the Russian Constitution citizenship (grazdanstvo – гражданство) of the Russian Federation shall be acquired and terminated according to federal law; it shall be one and equal, irrespective of the grounds of acquisition (Article 6 (1); a citizen of the Russian Federation may not be deprived of his or her citizenship (grazdanstvo – гражданство) or of the right to change it (Article 6 (3). At the same time, with regard to Article 26 (1) of the Russian Constitution the term ‘nationality’ (national’nost’ – национальность) is associated with the ethnicity of the person: ‘Everyone shall have the right to determine and indicate his nationality (national’nost’ – национальность). No one may be forced to determine and indicate his or her nationality (national’nost’ – национальность).’ As a result, in the Russian language, the term nationality (national’nost’ – национальность) refers to individual membership in a nation (нация) as a cultural, linguistic and historic community.”

[22] René de Groot, Survey on Rules on Loss of Nationality in International Treaties and Case Law, CEPS Papers in Liberty and Security in Europe, No. 57/August 2013, available at: http://core.ac.uk/download/pdf/16514111.pdf [Accessed on August 20, 2015]

[25]Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968)

[26] UN General Assembly, Declaration of the Rights of the Child, 20 November 1959, A/RES/1386(XIV)

[27] UN General Assembly, Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally : resolution / adopted by the General Assembly, 6 February 1987, A/RES/41/85